Connell v. State

JONES, Justice

(dissenting) :

The majority opinion gives three reasons for upholding the actions of the trial Court in not allowing the defense counsel to use the transcription in the cross-examination of Mrs. Froney:

(1) The defense counsel’s interrogation was designed to impeach the witness and no proper predicate for the impeachment had been laid.
(2) If defense counsel’s purpose was to refresh her recollection, the requisite conditions had not been met.
(3) The admissibility vel non lay within the trial Court’s discretion and this discretion was not here abused.

I respectfully disagree on all three points.

I.

Impeachment

I fail to understand how it could be conceivably argued that defense counsel was here attempting to impeach this witness. He made clear in his offer of proof that he hoped never to be in a position of having to impeach Mrs. Froney, who was the only eye witness to the brutal murder of her husband, and who had herself been a victim to this atrocity. This offer of proof, coupled with the substance and nature of the questions asked, reflect a trial strategy which abhorred impeachment. On direct examination, Mrs. Froney had answered, “I do not know” and “I do not remember” to several questions to which she had given definitive and potentially favorable replies when questioned by the investigating officer, and which replies the defense counsel now held in his hand by way of a transcription of the initial interview. To call this impeachment is in effect to abolish the distinction between impeachment on the one hand and to refresh recollection on the other, and that this Court has always recognized a valid distinction is too clear to warrant further discussion.

II.

Refreshed Recollection

The majority opinion states: “If defense counsel’s contention that he was not trying to impeach Mrs. Froney but only trying to refresh her recollection be accepted, the court was yet justified in sustaining the objection.”

The opinion then quotes from Judge McElroy’s Law of Evidence in Alabama, which prescribes certain conditions as prerequisites to admissibility, and the Court concludes these prerequisites were not here met. The quote from McElroy is taken out of context and fails to recognize the distinction between present recollection recalled and past recollection recorded. Wigmore on Evidence (Vol. 3, Chap. 28), with which McElroy agrees, delineates the two thusly:

“At the outset an important distinction is met between that present actual recollection which a witness on the stand may ordinarily be expected to exhibit (called *483here present recollection), and that recollection which once existed, but now, having irrevocably vanished, depends on artificial preservation (called here past recollection). The use of the latter sort was for a time little recognized, and is even now often confused with the use of a present recollection.”

In the case of present recollection, it must be remembered that we are dealing with primary evidence. It is the witness’s present recall, aided simply by some previously written memorandum. By the use of some previously recorded data the witness is saying, “This refreshes my recollection so that now, independent of the writing, I have a present recollection of the matter.” In the second situation the witness is saying, “There was a time shortly after the incident when I did remember certain of the facts and details, but I do not now, even after looking at and reviewing what was then written down, remember of my independent recollection what occurred.” In this latter case, the document itself, as secondary evidence, may be admissible with certain safeguards designed to insure the document’s reliability, i.e., that it was either written by a particular person, or was seen being recorded by that person, or testimony as to its validity by the person who did record it. The necessity of the safeguards for reliability in the case of secondary evidence (past recollection recorded) does not obtain in the case of primary evidence (present recollection recalled).

We are here dealing with a primary evidence issue only. Counsel for defendant, in cross-examining Mrs. Froney, was in nowise attempting to introduce the transcription of her earlier interview. He was, instead, seeking to refresh her present recollection of the events in question. Conceivably, if the attempt to refresh her recollection had failed and if she persisted, after reviewing her former statement, that her recollection had not been refreshed and that she continued not to remember,1 then the past recollection recorded rule may have been invoked. In that event, the written statement would have been admissible as secondary evidence only if the conditions requisite to its introduction were properly proved. Alternatively, the witness might also have testified, when counsel sought to refresh her recollection, that she did not at the time of the interview make the statements which appeared in the transcription. In that event, counsel could have elected — with the proper predicate, of course — to impeach the witness. Neither of the latter two situations ever occurred.

This is not a new or novel distinction or one without practical or logical basis. Chief Justice Stone, in his celebrated opinion of Acklen’s Executor v. Hickman, 63 Ala. 494 (1879), set out the rule:

“The law recognizes the right of a witness to consult memoranda in aid of his recollection, under two conditions: First, when, after examining a memorandum made by himself, or known and rec-n ognized by him as stating the facts truly, his memory is thereby so refreshed that he can testify, as matter of independent recollection, to facts pertinent to the issue. In cases of this class, the witness testifies to what he asserts are facts within his own knowledge; and the only distinquishing difference between testimony thus given, and ordinary evidence of facts, is that the witness, by invoking the assistance of the memorandum, admits that, without such assistance, his recollection of the transaction he testifies to, had become more or less obscured. In cases falling within this class, the memorandum is not thereby made evidence in the cause, and its contents are not made known to the jury, unless opposing counsel call out the same *484on cross-examination. This he may do, for the purpose of testing its sufficiency to revive a faded or fading recollection, if for no other reason.
“In the second class are embraced cases in which the witness, after examining the memorandum, can not testify to an existing knowledge of the fact, independent of the memorandum. In other words, cases in which the memorandum fails to refresh and revive the recollection, and thus constitute. it present knowledge. If the evidence of knowledge proceed no further than this, neither the memorandum, nor the testimony of the witness, can go before the jury. If, however, the witness go further, and testify that, at or about the time the memorandum was made, he knew its contents, and knew them to be true, this legalizes and lets in both the testimony of the witness and the memorandum. The two are the equivalent of a present, positive statement of the witness, affirming the truth of the contents of the memorandum.”

The rule of this case has never been overturned or questioned, and that its wisdom has been consistently acknowledged is reflected by two and one-half columns of citations in Shepard’s. In fairness to the majority, it should be noted that Acklen’s was not pointed out in briefs or oral arguments and was discovered by the author of this dissent after conference in which the vote of the court was taken.

The fallacy in rejecting the conclusion reached by the Court of Criminal Appeals is clearly focused by reversing the context in which the question arises. Suppose, for example, on direct examination Mrs. Froney was unable to recall sufficient details of the occurrence to make out a prima facie case against this defendant. Thereupon, the district attorney recalled to her mind the interview with the investigating officer which resulted in the transcription of the questions asked and her answers thereto. Suppose, further, that she recalled the interview and upon examining the transcription her present recollection was refreshed and that she testified over the objection of the defendant from her present recollection independently of," although aided by, the written document. On appeal, this Court without question, and properly so, would sustain the trial Court’s action in overruling the defendant’s objection and affirm the conviction. To be sure, the rule should be even more liberally applied in the context of cross-examination. If the rule of law admitting this testimony under the above hypothesis is a valid one, then it must not be analogous to a one-way ticket on a railroad — good for today only.

III.

Discretion of the Court

The trial Court, of course, must of necessity have wide discretion in the general conduct of a trial, but to use discretion as a substitute for definitive, substantive rules of evidence distorts the concept and effectively eliminates appellate review of error. If the rule of evidence above enunciated by Chief Justice Stone is the law of this State and we allow its misapplication to be affirmed under the guise of “lack of abuse of discretion,” of what value is the rule? Surely this question answers itself and precludes the use of the doctrine of discretion as a legal basis for the affirmance of the trial Court.

Indeed, the right of confrontation guaranteed by the Sixth Amendment to the United States Constitution and Art. 1, Sec. 6, Const, of Alabama, 1901, includes the right of cross-examination. Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965) ; Wray v. State, 154 Ala. 36, 45 So. 697 (1908); and reversal is mandated where the defendant’s substantive rights to a thorough and sifting cross-examination of an important witness have been invaded. Tit. 7, § 443, Code of *485Alabama 1940 (Recomp. 1958), provides in express language:

“The right of cross-examination thorough and sifting, belongs to every party as to the witnesses called against him.”

See also Green v. State, 258 Ala. 471, 64 So.2d 84 (1953).

The trial Court’s discretion was here abused, in my opinion, particularly since the Court cut off defense counsel’s effort to develop the line of questions designed to refresh the witness’s recollection not merely by sustaining the district attorney’s objections, but by affirmatively asserting to defense counsel: “. . . I’ll just take the bull by the horns right now and say that you can’t ask her any more questions from that statement . . . ”.

I would affirm the judgment of the Court of Criminal Appeals.

HEFLIN, C. J., concurs.

. The rule favoring admissibility under this hypothesis would likewise permit the use of the recording itself where the witness’s recollection is not refreshed from the transcription. The sound of one’s own voice might refresh one’s present recollection even though the written transcription did not.